Traversing the Law: Math isn't the answer; it's the problem.
July 1, 2010
The epitaph on the tombstone of the land surveying profession will read: “Here lies the land surveying profession. No two surveyors could ever agree on a corner.”
If I could do one thing to slow the current demise of the profession, I would seize all handheld calculators, computers and GPS equipment, and I would immediately issue a K&E transit, a 100-foot steel chainand three plumb bobs to every land surveyor performing boundary surveys. These remedial tools would be utilized until every surveyor, one by one, came around to the realization that the boundary problem has almost nothing to do with math.
Remember when you asked your fifth-grade teacher why you needed to learn math, and she said it was to keep you from becoming a ditch digger? Little did she know that if you eventually wanted to become a competent land surveyor, you were bringing up a legitimate point.
“Math,” and its evil sidekick “measurement,” like Dr. Frankenstein and Igor, bring back to life those things that were once dead and gone and release the monster of their creation onto the unsuspecting populace to wreak havoc across the countryside, all in the name of theoretical science. There are other minor players in this mad production. Old maps with protracted lot lines provide the body parts, and proportionate measurements assemble them. Arbitrary rules of surveying, rules that sound good but have no basis in reality, provide the alibis. The new mantra, “surveyors aren’t attorneys,” or the classic hit, “I’m just a surveyor,” provide the ethical cover. All of this results in a mathematical approach to boundary problems that goes beyond parody. The computer-generated overlay has now supplanted actual footsteps on the ground with virtual footsteps showing where the original surveyor intended to go. Implicated in all of this is the “original surveyor,” whom no one can seem to find or identify.
Computer-Generated ResultsThe computer “overlay” and computer generated results in general seem to be the growing excuse for real evidence-gathering techniques and the harder job of evaluating that evidence and rendering a professional judgment.
More specifically, the PAE surveyors entitled their survey a Retracement Survey, and their Proces Verbal stated that, “The meandered courses and distances were tied to section corners and therefore could be reasonably re-established utilizing survey retracement techniques to in effect follow the footsteps of the original surveyor. By retracing the meander lines, we could re-establish the location where the Little River emptied into Catahoula Lake.” However, the testimony of the surveyors demonstrated that the meander lines were not retraced on the ground by following in the footsteps of the original surveyor, but rather were mathematically calculated in an office using computers.
Burns said he never measured the road frontage based on the Cothams’ deed. He admitted that one of his associates could have done such a measurement thereby resulting in the 68.62 overlap shown in the sketches. However, he denied any overlap in the two property lines according to his survey findings. Burns admitted that his results were based in part on calculations (based on the deed) done by the computer.
The Geigers assert that the legal descriptions could not be clearer because they “contain identical calls evidencing a definite, certain, and ascertainable boundary between them.” The Geigers’ surveyor and their expert witness both testified that the language was clear and unambiguous. The Gilberts’ expert testified similarly. In fact, when Thiessen, the Geigers’ surveyor, used a transparent overlay of his survey, it showed his and the Wegner survey to be “virtually the same” survey, with the exception of the northwest corner pipe some forty-four feet off the parallel line. … Here, however, the otherwise clear metes and bounds descriptions are supplemented by reference to an artificial monument, the iron pipe, placed near a natural monument, Trude Lake. The legal description in a deed may be ambiguous, even if it can be accurately drawn on paper, if the description references natural monuments and does not fit the topography of the land.
Another actor implicated in the majority of these cases is the ostensible “following surveyor” who never sets foot on the ground during the survey, even though the results of the survey send the parties to court in a boundary dispute. “We find no cause for concern that the trial court found the testimony of the surveyor troublesome. The surveyor testified as to his results but noted that he had not conducted the actual survey.” A simple question is in order at this point: How in the world can a land surveyor consider all of the relevant extrinsic evidence in a boundary dispute case without ever visiting the site or the boundary in question? The simple answer is that the surveyor cannot; therefore, any decision on the boundary rendered by this surveyor cannot be a well-reasoned opinion based on all of the relevant evidence in the case.
The Hits Keep ComingThere is no shortage of cases along this vein, and the hits keep coming. Our case-in-chief, Anderson v. Wallace, is just the latest example of a long line of similar cases. The dispute in this case is over the location of the common boundary between Lots 97 and 98 of the C.M. Bost Estate subdivision platted in 1945. Anderson owns property derived from Lot 97, north of the common line, and Wallace owns land derived from Lot 98 to the south. Of course, the Bost map has closure problems and a so-called 50-foot “floating error.” No boundary dispute would be complete without the requisite closure problem. And surveyors applying math and measurements are the only ones who can discover “floating errors” or who would use math, in particular proportionate measurements, to correct closure problems. All other interested parties, particularly judges and landowners, rely on the law and monuments to resolve the question of what the boundary is and where it is located.
Nevertheless, according to the Bost map, Guy Fisher, the platting surveyor (Surveyor 1), had set “iron axles or stakes” to mark the corners of Lot 98, which would include the common boundary with Lot 97. After Fisher, the first retracement survey of the common line was performed in 1973 by an unlicensed surveyor (Surveyor 2) who found “iron axles” at Fisher’s corners. In 1990, another retracement survey was performed, this time by a licensed surveyor (Surveyor 3) who also held the iron axles. Surveyor 3 repeated his survey in 1999 with no apparent deviation. Before the litigation began, another surveyor (Surveyor 4) was hired by Anderson, and he threw out the axles in favor of math and measurements. Surveyor 4 “re-did” his survey in 2002 “based on additional evidence” but with the same apparent results. Wallace then hired Surveyor 5 to survey the line in 2000, and Surveyor 5 accepted and held the iron axles, as had Surveyors 2 and 3 before him. Wallace hired yet another surveyor (Surveyor 6) to “study the existing surveys and research the location of the boundary line between lots 97 and 98.” Surveyor 6 also held the iron axles as emblematic of the Fisher corners.
All of this went to a hearing, and the hearing master commissioned Mel G. Thompson & Associates (Thompson) to survey the disputed line. Thompson’s 2003 survey agreed with Surveyor 4’s survey.
The two surveyed lines were referred to at trial as the “Wallace line,” supported by Surveyors 3, 5 and 6, and the “Griffin line,” supported by Surveyor 4 and Thompson. The court’s comments on the surveys and methods used sum up the case much better than I could.
[Surveyors 3, 5 and 6], all licensed and experienced land surveyors, provided testimony that the Wallace line is marked by axle irons and also by markings in the trees. [Surveyor 3] found axle irons that mark the original corners of the Bost estate, including the front common corner of lots 97 and 98. By using a surveying methodology that was slightly different, [Surveyor 5] confirmed the location of the front corner. [Surveyor 5] worked from the railroad track and proceeded north along Highway 601. [Surveyor 6] checked the work of [Surveyors 3 and 5], and determined the Wallace line as the true boundary. Respondent Wallace also testified that old axle irons marked the common front corner between his property and that owned by petitioner. Respondent Wallace and petitioner’s predecessor in interest recognized this as the true common front corner of the two lots.
On the other hand, petitioner’s surveyor, [Surveyor 4], testified that the Griffin line was the true boundary between the two lots. However, [Surveyor 4] “built this line” by starting at a point to the north of Hwy 601 and proceeding with the distances of the other lots until he “established” the front common corner of lots 97 and 98. Furthermore, [Surveyor 4] also testified that he was hired to “re-establish” the line between lots 97 and 98. The trial court found that [Surveyor 4] “tried to restore footage to petitioner’s lot 97,” rather than honor the original axle irons that marked the boundary of lots 97 and 98. That is, [Surveyor 4] did not attempt to locate the original boundary line; he simply tried to restore the shortage that arose due to the floating error by establishing a new line. The court also found this practice to be in conflict with established land survey practices, where surveyors try to retrace old boundaries by “walking in the shoes of the original surveyor” and “following in the tracks of the original surveyor.”
As a final note, Surveyor 4 broke out the ubiquitous “overlay” to prove he had walked in the footsteps of the original surveyor. “In support of its claim, petitioner [Anderson] states that [Surveyor 4] did an ‘overlay’ of the original Bost Estate map. Petitioner does not explain how an overlay supports his argument that [Surveyor 4] ‘walked in the shoes’ of the original surveyor.” Can anyone explain that?
1. A “transit” is an angular measuring device, or instrument, equipped with a telescope mounted to a vertical and horizontal circle, incremented so that vertical and horizontal angles can be measured.
2. A “steel chain” is a linear measuring device made of a relatively thin strip of steel a little over 100 feet long, marked at one foot intervals, with an extra foot at the zero end marked into 100 equal sized increments representing tenths and hundredths of a foot.
3. A “plumb bob” is a small mass of heavy material, usually made of brass and shaped like a cone, that hangs from a string-line indicating the direction of gravity. Three are generally needed. One hangs underneath the center point of the transit and the other two go with each end of the chain.
4. In surveying parlance this monster is known as the surveyor-created “boundary dispute.”
5. Rapids Parish v. Grant Parish, 924 So.2d 357, 374 (La.App.2006).
6. Dowdell v. Cotham, 2007 Tenn. App. LEXIS 470, 4, 5 (Tenn.App. 2007).
7. Gilbert v. Geiger, 747 N.W.2d 188, 192, 193 (Wisc.App. 2008).
8. Dowdell v. Cotham at 28, 29.
9. Anderson/Griffin Properties, LLC v. R.L. Wallace Construction Co., Inc., 681 S.E.2d 553 (N.C.App. 2009).
10. We aren’t told that this survey “sparked the litigation” as has been the situation in many other cases, but the implication is unmistakable.
11. This begs the question. What else are land surveyors supposed to be doing in a retracement survey?
12. Anderson v. Wallace at 558.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.
This column is a forum for analysis and discussion of closed court cases. Facts and information cited are limited to what is contained in the published legal documents. It is not POB nor the author’s intent to re-try cases that have already been resolved and closed by the court system.